Cox v. Lohmann

• Court: New Mexico Court of Appeals
• Decided: March 29, 2012
• Docket: 31,810
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

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

2 ROGER COX and ASSOCIATES 3 PROPERTY MANAGEMENT, LLC ,

4 Plaintiff-Appellee,

5 vs. No. 31,810

6 AARON LOHMANN,

7 Defendant-Appellant.

8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 9 Valerie A. Huling, District Judge

10 Robert S. Simon 11 Albuquerque, NM

12 for Appellee

13 Moses, Dunn, Farmer & Tuthill, P.C. 14 Ronald A. Tucker 15 Albuquerque, NM

16 for Appellant

17 MEMORANDUM OPINION 1 GARCIA, Judge.

2 Defendant appeals from a district court on-the-record judgment dismissing his

3 appeal from a metropolitan court on Plaintiff’s complaint for rent due. We proposed

4 to affirm. Defendant has filed a memorandum in opposition. We affirm.

5 Defendant’s issue on appeal is whether Plaintiff had standing to bring suit in

6 the metropolitan court. As we stated in our calendar notice, we believe that the district

7 court properly determined [RP 116] that Defendant’s issue is unreviewable because

8 he did not preserve a record of the metropolitan court hearing in this matter.

9 Metropolitan courts are courts of record in civil actions. See NMSA 1978, § 34-8A-

10 6(B) (1993); Rule 1-073 NMRA. A party wanting to preserve a recording of the

11 proceedings is required to make the request. Rule 3-708(A) NMRA. Here, neither

12 party requested a recording of the proceedings.

13 In his memorandum in opposition, Defendant argues that we can overlook the

14 lack of a complete record, and may limit our review to the pleadings in the record

15 proper. We conclude that this would be unfair to Plaintiff, because it would ignore

16 any evidence in its favor presented at the hearing. Defendant’s argument goes against

17 our longstanding case law on this. See, e.g., Michaluk v. Burke, 105 N.M. 670, 676-

2 1 77, 735 P.2d 1176, 1182-83 (Ct. App. 1987) (“Where the record on appeal is

2 incomplete, the ruling of the trial court is presumed to be supported by the

3 evidence.”); Dillard v. Dillard, 104 N.M. 763, 765, 727 P.2d 71, 73 (Ct. App. 1986)

4 (observing that it is the duty of the appellant to provide a record adequate to review

5 the issues on appeal). Although we find this to be unnecessary for our resolution of

6 this appeal, we do note that the record indicates that Plaintiff is the successor-in-

7 interest of the original lessor. [RP 53]

8 For the reasons set forth above, we affirm.

9 IT IS SO ORDERED.

10 11 TIMOTHY L. GARCIA, Judge

12 WE CONCUR:

13 14 CYNTHIA A. FRY, Judge

15 16 LINDA M. VANZI, Judge