Fuller v. DeLosier

• Court: New Mexico Court of Appeals
• Decided: February 13, 2013
• Docket: 32,428
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 JESSE AND GAYLE FULLER,

3 Plaintiffs-Appellees,

4 v. No. 32,428

5 JONATHAN AND SHELBY DELOSIER,

6 Defendants,

7 IN RE BRYAN ARTHUR COLLOPY,

8 Attorney-Appellant.

9 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 10 J. Richard Brown, District Judge

11 Craig J. La Bree 12 Hobbs, NM

13 for Appellees

14 Bryan Collopy 15 Hobbs, NM

16 Attorney for Defendants and Pro Se Appellant

17 MEMORANDUM OPINION

18 FRY, Judge. 1 Attorney-Appellant, Bryan Arthur Collopy, (Attorney) appeals from the district

2 court’s order ordering Attorney to reimburse Plaintiffs for attorney fees and costs in

3 the amount of $6,025.40 as a sanction for his conduct as counsel for Defendants in

4 this matter. [DS 9, RP 151-52] We issued a notice proposing to summarily affirm

5 and Attorney filed a memorandum in opposition. We remain unpersuaded by

6 Attorney’s arguments and affirm.

7 In our notice, we cited Landess v. Garnder Turf Grass, Inc. for the proposition

8 that “[c]ourts have the inherent power, independent of statute or rule, to award

9 attorney fees to vindicate their judicial authority and compensate the prevailing party

10 for expenses incurred as a result of frivolous or vexatious litigation.” 2008-NMCA-

11 159, ¶ 19, 145 N.M. 372, 198 P.3d 871 (alteration, internal quotation marks, and

12 citation omitted). In his memorandum in opposition, Attorney argues that Landess is

13 inapposite because it limits the imposition of sanctions to situations involving

14 frivolous or vexatious litigation and contends that the district court did not find that

15 Attorney’s actions in this matter rose to that level. [MIO 2-3]1

16 We do not read Landess as requiring a finding that expenses were incurred as

17 a result of frivolous or vexatious litigation to support an award of attorney fees

1 18 We note that Attorney’s memorandum in opposition is improperly paginated. 19 The pages are numbered as 1, 2, 1, 2, 1. We will refer to the page numbers by their 20 correct pagination (1-5).

2 1 pursuant to a court’s inherent power. On the contrary, what appears to be required is

2 that a court make “particularized findings of misconduct” to support an award of

3 attorney’s fees. See Landess, 2008-NMCA-159, ¶ 19 (discussing State ex rel. New

4 Mexico State Highway & Transp. Dep’t v. Baca, 120 N.M. 1, 8, 896 P.2d 1148, 1155

5 (1995)). Here, the district court found that Attorney’s actions were “improper” and

6 “willful.” [RP 151] This finding sufficiently supports the district court’s imposition

7 of sanctions on Attorney. See Herrera v. Roman Catholic Church, 112 N.M. 717,

8 721, 819 P.2d 264, 268 (Ct. App. 1991) (“Unless clearly erroneous or deficient,

9 findings of the [district] court will be construed so as to uphold a judgment rather than

10 to reverse it.”).

11 Attorney also continues to argue that the district court deprived him his right

12 to due process by imposing sanctions on him. [MIO 3-4] In our notice, we proposed

13 to affirm because the record reflects that the district court provided Attorney with an

14 opportunity to be heard, and Attorney failed to avail himself of it. Attorney now

15 argues that the district court did not provide him with an opportunity to be heard

16 because it resolved the issue of attorney fees at a status hearing, which Attorney

17 elected not to attend. Attorney appears to argue that the district court “disguis[ed] the

18 nature of the hearing.” [MIO 4] We see no basis for this assertion in the record.

3 1 The district court found Attorney “had ample notice that Plaintiff had a claim

2 for attorney[] fees.” [RP 161] The court also found it specifically instructed Attorney

3 to respond, in writing, to Plaintiffs’ counsel’s affidavit in support of attorney fees

4 within fifteen days and informed Attorney it would set a hearing on the issue of

5 attorney fees if either party requested such hearing. [RP 161] The district court found

6 Plaintiffs’ counsel submitted his affidavit on May 22, 2012, and Attorney “neglected

7 to object or respond at all.” [RP 161] The district court set the matter for a status

8 hearing on August 2, 2012, and Attorney failed to appear. [RP 160] The court

9 concluded Attorney’s due process claim was “without merit” because Attorney

10 “willfully disregarded this Court’s instructions for briefing the attorney[] fee[s] issue

11 and additionally has willfully neglected his opportunity to address the matter at a

12 hearing.” [RP 161, 162] These findings are supported in the record and not clearly

13 erroneous or deficient. We thus affirm. See Herrera, 112 N.M. at 721, 819 P.2d at

14 268 (“Unless clearly erroneous or deficient, findings of the [district] court will be

15 construed so as to uphold a judgment rather than to reverse it.”).

16 IT IS SO ORDERED.

17 18 CYNTHIA A. FRY, Judge

19 WE CONCUR:

4 1 2 MICHAEL E. VIGIL, Judge

3 4 TIMOTHY L. GARCIA, Judge