1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 SEAN KNIGHT, 8 Plaintiff-Appellant, 9 v. NO. 29,728
10 DARDANELLES FOUNDATION and 11 LYDA McCORMICK,
12 Defendants-Appellees.
13 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 14 Daniel A. Sanchez, District Judge
15 The Egolf Law Firm, LLC 16 Brian F. Egolf, Jr. 17 Santa Fe, NM
18 for Appellant
19 The Elion Law Firm, P.C. 20 Gary D. Elion 21 Santa Fe, NM
22 for Appellees
23 MEMORANDUM OPINION 24 BUSTAMANTE, Judge.
1 Sean Knight (Landlord) prevailed below in an action against the Dardanelles 2 Foundation and Lyda McCormick (Tenants) to regain possession of a property he had 3 leased to the Dardanelles Foundation. Tenants appealed, and this Court affirmed. On 4 remand, Landlord filed a motion to reconsider the portion of the final judgment 5 denying Landlord’s request for attorney fees. At issue in this appeal is whether the 6 district court abused its discretion in denying the motion to reconsider. 7 I. BACKGROUND 8 Landlord was awarded a judgment for restitution in magistrate court ordering 9 Tenants to surrender possession of the rental property and to pay $737 in rent, late 10 fees, and costs. The judgment also terminated the rental agreement. Tenants appealed 11 to the district court, which reached the same result as the magistrate court. In its 12 decision and order, the district court denied Landlord’s request for attorney fees. 13 After Tenants filed a notice of appeal, Landlord filed a motion to reconsider the denial 14 of attorney fees. The district court denied the motion but gave Landlord an extension 15 of time to file a cross-appeal. 16 Landlord took advantage of this extension and cross-appealed the denial of the 17 motion to reconsider. Importantly, Landlord did not appeal the portion of the final 18 judgment denying the attorney fees. This Court affirmed the district court, ruling 19 against Tenants on all issues and dismissing Landlord’s cross-appeal. We concluded
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1 our opinion by noting that “[o]nce mandate has issued from this Court on Tenant[s’] 2 appeal, the district court will regain jurisdiction to evaluate any outstanding issues, 3 including Landlord’s motion to reconsider.” Although this Court reversed nothing, 4 it stated that it “affirm[ed] the district court in part.” (emphasis added). 5 On remand, Landlord renewed his motion to reconsider the denial of attorney 6 fees. The renewed motion made no new substantive arguments, but instead simply 7 referred the district court to the arguments Landlord had made in his previous motion 8 to reconsider. The previous motion included arguments essentially identical to the 9 arguments Landlord makes in this appeal. A hearing was scheduled for June 24, 2009, 10 although no transcript of this hearing appears in the record. An order denying the 11 renewed motion was entered on August 3, 2009. 12 On June 30, 2009, before the order denying the renewed motion was entered, 13 Landlord filed a notice of appeal. Attached to this notice of appeal was the original 14 August 21, 2008, order denying attorney fees. On September 17, 2009, this Court 15 issued an order directing Landlord to show cause why the appeal should not be 16 dismissed for lack of a final, appealable order. On October 30, 2009, Landlord filed 17 his response to the order to show cause and informed this Court that he believed that 18 his response to Tenants’ motion to dismiss filed on September 15, 2009, which did not 19 include a final order and which was filed two days before the order to show cause, had
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1 adequately responded to this Court’s order. The response did, however, include a 2 copy of the district court’s August 3, 2009, order denying his renewed motion to 3 reconsider from which Landlord now appeals. Subsequently, we quashed the order 4 to show cause. 5 II. DISCUSSION 6 Landlord argues that the district court abused its discretion by denying his 7 request for attorney fees pursuant to NMSA 1978, Section 47-8-48 (1995). Tenants 8 respond that we should dismiss Landlord’s appeal due to his failure to timely respond 9 to this Court’s order to show cause, and that the district court properly awarded 10 Landlord $0 in attorney fees. We address each argument in turn. 11 A. Jurisdiction 12 We first address whether this Court has jurisdiction over Landlord’s appeal. 13 Tenants argue that this Court lacks jurisdiction (1) because appeal was taken on June 14 30, 2009, from the August 21, 2008, judgment and (2) because Landlord did not 15 respond to this Court’s order to show cause within the twenty-day period set forth in 16 that order. As the two arguments arise from the same set of facts, we address them 17 together. 18 Tenants’ first argument is based on the premise that Landlord did not appeal the 19 denial of the renewed motion to reconsider, but instead attempted to appeal for a
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1 second time the original August 21, 2008, judgment. However, Tenants fail to point 2 out that we quashed the order to show cause after Landlord submitted a copy of the 3 district court’s August 3, 2009, order denying the motion to reconsider. Our rules 4 expressly contemplate the filing of an appeal prior to the entry of final judgment. See 5 Rule 12-201 NMRA (“A notice of appeal filed after the announcement of a decision, 6 or return of the verdict, but before the judgment or order is filed in the district court 7 clerk’s office shall be treated as filed after such filing and on the day thereof.”). We 8 construe these rules “in favor of deciding an appeal on the merits whenever possible.” 9 Lovelace Med. Ctr. v. Mendez, 111 N.M. 336, 339, 805 P.2d 603, 606 (1991). 10 Although we would not recommend the procedure followed here, it is not fatal to 11 Landlord’s appeal. 12 Tenants’ second argument, set forth in a single paragraph, asks us to dismiss the 13 appeal because Landlord did not respond to our order to show cause within the 14 twenty-day period provided by that order. We do not address undeveloped arguments 15 on appeal. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 16 339, 110 P.3d 1076. Furthermore, we later quashed the order to show cause, and 17 Tenants fail to direct us to any authority indicating that the procedure in this case was 18 improper. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) 19 (holding that absent cited authority to support an argument, we assume no such
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1 authority exists). Our Supreme Court has held that, provided no party is prejudiced, 2 we may relax our deadlines when required in the interest of justice. See Lovelace 3 Med. Ctr., 111 N.M. at 341, 805 P.2d at 608. As Tenants point to no prejudice, we 4 see no reason to dismiss the appeal on these grounds. 5 B. Procedure 6 We now turn to the district court’s denial of the renewed motion to reconsider. 7 Landlord’s brief is directed to the substantive merits of his legal argument regarding 8 attorney fees. Tenants’ response is also directed to whether attorney fees should have 9 been awarded. Both parties have identified the standard of review as follows: “An 10 appeal from a denial of attorney’s fees is reviewed for an abuse of discretion.” 11 However, Landlord has not appealed the denial of his attorney fees, but instead has 12 appealed the denial of his renewed motion to reconsider the denial of attorney fees. 13 We review the denial of a motion to reconsider for abuse of discretion. See 14 GCM, Inc. v. Ky. Cent. Life Ins. Co., 1997-NMSC-052, ¶ 28, 124 N.M. 186, 947 P.2d 15 143. “Ordinarily, when a party appeals from the denial of a motion to set aside a 16 judgment, the scope of appellate review is limited to the correctness of the denial of 17 the motion and does not extend to the judgment sought to be reopened.” Garcia v. 18 Jeantette, 2004-NMCA-004, ¶ 14, 134 N.M. 776, 82 P.3d 947. The exception to this 19 rule is if the district court reached the merits in denying the motion. Id. “[T]he
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1 [district] court abuses its discretion when it applies an incorrect standard, incorrect 2 substantive law, or its discretionary decision is premised on a misapprehension of the 3 law.” Aragon v. Brown, 134 N.M. 459, 462, 78 P.3d 913, 916 (Ct. App. 2003). 4 Landlord has made no argument that the district court abused its discretion by 5 improperly denying his renewed motion to reconsider. Instead, Landlord has directed 6 his argument at the judgment that he sought to reopen. Absent some explanation of 7 why the denial of the renewed motion to reconsider was incorrect, we indulge every 8 presumption in favor of the correctness of the decision of the trial court. See, e.g., Bd. 9 of Comm’rs of Doña Ana Cnty. v. Las Cruces Sun-News, 2003-NMCA-102, ¶ 10, 134 10 N.M. 283, 76 P.3d 36. At the time the district court denied the renewed motion to 11 reconsider, Landlord had already appealed the final judgment denying him attorney 12 fees. As Landlord failed to argue that the denial of attorney fees was improper, he had 13 waived the issue. See, e.g., Fleming v. Town of Silver City, 1999-NMCA-149, ¶ 3, 14 128 N.M. 295, 992 P.2d 308 (holding that issues not raised in the brief in chief are 15 waived). A motion to reconsider is not a substitute for an appeal. See Phelps Dodge 16 Corp. v. Guerra, 92 N.M. 47, 50, 582 P.2d 819, 822 (1978). Accordingly, we cannot 17 say that the district court abused its discretion by denying the renewed motion to 18 reconsider.
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1 C. Merits 2 We cannot end our analysis with the procedural errors. Our prior opinion in 3 this case did not simply affirm the district court. Had it done so, we could 4 comfortably say that Landlord’s waiver controlled. Instead, we dismissed Landlord’s 5 cross-appeal, noting that “[o]nce mandate has issued from this Court on Tenant[s’] 6 appeal, the district court will regain jurisdiction to evaluate any outstanding issues, 7 including Landlord’s motion to reconsider.” Under these circumstances, we feel 8 bound to address Landlord’s argument on its merits. 9 Unfortunately, Landlord makes one final mistake that precludes us from 10 reaching the merits of his appeal. Landlord’s claim of error rests on the issue of which 11 statute applies to attorney fees in this case: Section 47-8-48 or Section 47-8-30. 12 Section 47-8-48 applies to claims to enforce a rental agreement, and requires that 13 attorney fees be awarded. Section 47-8-30 applies to actions for possession based on 14 nonpayment of rent or actions to obtain unpaid rent from a tenant in possession, and 15 gives the court discretion regarding fees. In order to determine which statute applies, 16 we must look to the facts and the nature of the claims. 17 Our effort to examine these facts is thwarted by Landlord’s failure to provide 18 an adequate record. We are unable to examine the counts alleged in the complaint 19 because most of the complaint is missing. Furthermore, we do not have the benefit
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1 of the district court’s thoughts on this matter because the record does not contain a 2 transcript of the merits hearing held in the district court or the hearing on the renewed 3 motion to reconsider. Tenants suggest that the court did award attorney fees, but 4 determined that a reasonable fee was $0. Absent some indication of what Landlord’s 5 claims were or how the district court viewed or resolved them, we have no basis upon 6 which we can analyze whether the district court erred by not applying Section 47-8-48 7 and awarding attorney fees. “It is the duty of the appellant to provide a record 8 adequate to review the issues on appeal.” Sandoval v. Baker Hughes Oilfield 9 Operations, Inc., 2009-NMCA-095, ¶ 65, 146 N.M. 853, 215 P.3d 791. “Matters 10 outside the record present no issue for review.” State v. Harrison, 2010-NMSC-038, 11 ¶ 10, 148 N.M. 500, 238 P.3d 869 (internal quotation marks omitted) (quoting State 12 v. Smith, 92 N.M. 533, 536, 591 P.2d 664, 667 (1979)). 13 III. CONCLUSION 14 For the foregoing reasons, we affirm the district court’s ruling. 15 IT IS SO ORDERED.
16 17 MICHAEL D. BUSTAMANTE, Judge
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1 WE CONCUR:
2 3 JONATHAN B. SUTIN, Judge
4 5 MICHAEL E. VIGIL, Judge