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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 ANA LUISA MARTINEZ,
3 Plaintiff-Appellee,
4 v. NO. 34,039
5 MANUEL LORENZO MUNOZ,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 8 Manuel I. Arrieta, District Judge
9 Samuel I. Kane 10 Las Cruces, NM
11 for Appellee
12 Perales Law Group 13 Jose Marcos Perales Pina 14 Las Cruces, NM
15 for Appellant
16 MEMORANDUM OPINION
17 VIGIL, Chief Judge. 18 {1} Defendant appeals the district court’s judgment declaring Plaintiff as the sole 1 owner of property located in Doña Ana County, New Mexico known as Lot 1,
2 Homesite Estate No. 5, and ordering Defendant to execute a warranty deed to transfer
3 his interest in this property to Plaintiff. Defendant raises twelve issues; however, he
4 does not, as required under Rule 12-213(A)(4) NMRA, provide citations to the record
5 where he preserved the issues, give adequate citations to the record for his factual
6 assertions concerning his arguments, or cite to authority for certain propositions in his
7 brief. Moreover, we have reviewed the district court’s findings of fact and conclusions
8 of law, and conclude that the findings support the conclusions. We therefore affirm.
9 BACKGROUND
10 {2} Plaintiff filed a complaint for breach of contract, specific performance,
11 declaratory judgment, unjust enrichment, and conversion, requesting that the district
12 court declare Plaintiff as the rightful owner of Lot 1, and order Defendant to execute
13 and deliver a deed transferring his interest in this lot. The district court filed its
14 findings of fact and conclusions of law, and finding in favor of Plaintiff on her claim
15 of unjust enrichment and for declaratory judgment, entered judgment in Plaintiff’s
16 favor. Defendant appeals.
17 {3} We rely on the following facts from the district court’s findings of fact because
18 Defendant has not specifically challenged any of the findings. See Rule 12-213(A)(4).
19 In 1983, Plaintiff and Defendant, who are brother and sister, purchased 2.5 acres of
2 1 land in Doña Ana County, New Mexico as joint tenants. Plaintiff and Defendant lived
2 in a mobile home on the property with Plaintiff’s daughter and their mother and three
3 younger siblings. As time passed, Plaintiff wanted her own home in order to provide
4 for her daughter’s future. Plaintiff paid for the building of a house located on a
5 specific area of property later known as Lot 1, and supervised its construction. None
6 of Plaintiff’s family members, including Defendant, contributed to the cost of the
7 house. The building permit was issued under Plaintiff’s name, as well the certificate
8 of occupancy once the house was completed. Plaintiff’s entire family moved into the
9 newly constructed home, and it was referred to as “[Plaintiff’s] house.”
10 {4} In 1991, Plaintiff and Defendant subdivided the property into three different
11 lots—Lots 1, 2, and 3. Plaintiff moved out of the house on Lot 1 in 1990 to live with
12 her new husband. Defendant was building a house on Lot 2 and moved into the
13 unfinished home a few years later. The parties sold Lot 3 to their sister, and their
14 mother is the only individual who has continually resided in the house on Lot 1.
15 {5} Although Plaintiff moved out of the residence on Lot 1, she maintained a
16 homeowner’s insurance policy on the house. Plaintiff also paid all the taxes on Lot 1,
17 except when Defendant paid one-half of the taxes in 2012 and 2013. Plaintiff also paid
18 the maintenance and repair work on Lot 1. According to Plaintiff’s daughter,
3 1 Defendant, who acted as her father while growing up, repeatedly told her that her
2 mother worked hard and sacrificed to provide for her welfare.
3 {6} In 2002, Defendant asked Plaintiff to deed her interest in Lot 2 to him. Plaintiff
4 did not request nor did Defendant offer any compensation to transfer her interest in
5 Lot 2. Plaintiff deeded her interest in Lot 2 to Defendant, believing that she owned the
6 house on Lot 1, and that Defendant would transfer his interest in Lot 1 to her. In
7 January 2012, when Plaintiff requested that Defendant deed his interest in Lot 1 to
8 her, Defendant responded that he needed to know the boundary lines of Lot 2 before
9 he could do so, and asked Plaintiff to obtain a survey of the land. Plaintiff acquired
10 a survey, and again asked Defendant to transfer his interest in Lot 1 to her. Defendant
11 refused to do so, saying he believed that Plaintiff would place their Mother in a
12 nursing home as soon as the transfer was complete. Plaintiff never expressed any
13 interest in placing their Mother in a nursing home. Later, Defendant offered to transfer
14 his interest in Lot 1 if Plaintiff paid him $25,000.
15 Analysis
16 {7} Defendant raises twelve issues in this appeal, but he has failed to comply with
17 Rule 12-213(A)(4) in his brief. An appellant’s brief must contain:
18 [A]n argument which, with respect to each issue presented, shall 19 contain a statement of the applicable standard of review, the contentions 20 of the appellant[,] and a statement explaining how the issue was 21 preserved in the court below, with citations to authorities, record proper,
4 1 transcript of proceedings or exhibits relied on. Applicable New Mexico 2 decisions shall be cited. The argument shall set forth a specific attack on 3 any finding, or such finding shall be deemed conclusive. A contention 4 that a verdict, judgment or finding of fact is not supported by substantial 5 evidence shall be deemed waived unless the argument identifies with 6 particularity the fact or facts that are not supported by substantial 7 evidence.
8 Rule 12-213(A)(4). Here, Defendant does not show where, in the record, he
9 specifically raised the issues in the district court. See Crutchfield v. N.M. Dep’t of
10 Taxation & Revenue., 2005-NMCA-022, ¶ 14, 137 N.M. 26, 106 P.3d 1273 (“[O]n
11 appeal, the party must specifically point out where, in the record, the party invoked
12 the court’s ruling on the issue. Absent that citation to the record or any obvious
13 preservation, we will not consider the issue.”). Defendant also does not provide
14 adequate citations to the record supporting his factual assertions for his arguments.
15 See Wachocki v. Bernalillo Cty. Sheriff’s Dep’t, 2010-NMCA-021, ¶ 15, 147 N.M.
16 720, 228 P.3d 504 (“Where a party fails to cite any portion of the record to support its
17 factual allegations, the Court need not consider its argument on appeal.”). Finally,
18 Defendant does not give any authority for certain propositions in his brief, and we
19 therefore do not consider them on appeal. See ITT Educ. Servs., Inc. v. Taxation &
20 Revenue Dep’t, 1998-NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d 969.
21 {8} In any event, we have reviewed the district court’s findings of fact and
22 conclusions of law, and in doing so, we conclude that the district court’s findings
5 1 support its conclusions on the unjust enrichment claim.
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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 ANA LUISA MARTINEZ,
3 Plaintiff-Appellee,
4 v. NO. 34,039
5 MANUEL LORENZO MUNOZ,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 8 Manuel I. Arrieta, District Judge
9 Samuel I. Kane 10 Las Cruces, NM
11 for Appellee
12 Perales Law Group 13 Jose Marcos Perales Pina 14 Las Cruces, NM
15 for Appellant
16 MEMORANDUM OPINION
17 VIGIL, Chief Judge. 18 {1} Defendant appeals the district court’s judgment declaring Plaintiff as the sole 1 owner of property located in Doña Ana County, New Mexico known as Lot 1,
2 Homesite Estate No. 5, and ordering Defendant to execute a warranty deed to transfer
3 his interest in this property to Plaintiff. Defendant raises twelve issues; however, he
4 does not, as required under Rule 12-213(A)(4) NMRA, provide citations to the record
5 where he preserved the issues, give adequate citations to the record for his factual
6 assertions concerning his arguments, or cite to authority for certain propositions in his
7 brief. Moreover, we have reviewed the district court’s findings of fact and conclusions
8 of law, and conclude that the findings support the conclusions. We therefore affirm.
9 BACKGROUND
10 {2} Plaintiff filed a complaint for breach of contract, specific performance,
11 declaratory judgment, unjust enrichment, and conversion, requesting that the district
12 court declare Plaintiff as the rightful owner of Lot 1, and order Defendant to execute
13 and deliver a deed transferring his interest in this lot. The district court filed its
14 findings of fact and conclusions of law, and finding in favor of Plaintiff on her claim
15 of unjust enrichment and for declaratory judgment, entered judgment in Plaintiff’s
16 favor. Defendant appeals.
17 {3} We rely on the following facts from the district court’s findings of fact because
18 Defendant has not specifically challenged any of the findings. See Rule 12-213(A)(4).
19 In 1983, Plaintiff and Defendant, who are brother and sister, purchased 2.5 acres of
2 1 land in Doña Ana County, New Mexico as joint tenants. Plaintiff and Defendant lived
2 in a mobile home on the property with Plaintiff’s daughter and their mother and three
3 younger siblings. As time passed, Plaintiff wanted her own home in order to provide
4 for her daughter’s future. Plaintiff paid for the building of a house located on a
5 specific area of property later known as Lot 1, and supervised its construction. None
6 of Plaintiff’s family members, including Defendant, contributed to the cost of the
7 house. The building permit was issued under Plaintiff’s name, as well the certificate
8 of occupancy once the house was completed. Plaintiff’s entire family moved into the
9 newly constructed home, and it was referred to as “[Plaintiff’s] house.”
10 {4} In 1991, Plaintiff and Defendant subdivided the property into three different
11 lots—Lots 1, 2, and 3. Plaintiff moved out of the house on Lot 1 in 1990 to live with
12 her new husband. Defendant was building a house on Lot 2 and moved into the
13 unfinished home a few years later. The parties sold Lot 3 to their sister, and their
14 mother is the only individual who has continually resided in the house on Lot 1.
15 {5} Although Plaintiff moved out of the residence on Lot 1, she maintained a
16 homeowner’s insurance policy on the house. Plaintiff also paid all the taxes on Lot 1,
17 except when Defendant paid one-half of the taxes in 2012 and 2013. Plaintiff also paid
18 the maintenance and repair work on Lot 1. According to Plaintiff’s daughter,
3 1 Defendant, who acted as her father while growing up, repeatedly told her that her
2 mother worked hard and sacrificed to provide for her welfare.
3 {6} In 2002, Defendant asked Plaintiff to deed her interest in Lot 2 to him. Plaintiff
4 did not request nor did Defendant offer any compensation to transfer her interest in
5 Lot 2. Plaintiff deeded her interest in Lot 2 to Defendant, believing that she owned the
6 house on Lot 1, and that Defendant would transfer his interest in Lot 1 to her. In
7 January 2012, when Plaintiff requested that Defendant deed his interest in Lot 1 to
8 her, Defendant responded that he needed to know the boundary lines of Lot 2 before
9 he could do so, and asked Plaintiff to obtain a survey of the land. Plaintiff acquired
10 a survey, and again asked Defendant to transfer his interest in Lot 1 to her. Defendant
11 refused to do so, saying he believed that Plaintiff would place their Mother in a
12 nursing home as soon as the transfer was complete. Plaintiff never expressed any
13 interest in placing their Mother in a nursing home. Later, Defendant offered to transfer
14 his interest in Lot 1 if Plaintiff paid him $25,000.
15 Analysis
16 {7} Defendant raises twelve issues in this appeal, but he has failed to comply with
17 Rule 12-213(A)(4) in his brief. An appellant’s brief must contain:
18 [A]n argument which, with respect to each issue presented, shall 19 contain a statement of the applicable standard of review, the contentions 20 of the appellant[,] and a statement explaining how the issue was 21 preserved in the court below, with citations to authorities, record proper,
4 1 transcript of proceedings or exhibits relied on. Applicable New Mexico 2 decisions shall be cited. The argument shall set forth a specific attack on 3 any finding, or such finding shall be deemed conclusive. A contention 4 that a verdict, judgment or finding of fact is not supported by substantial 5 evidence shall be deemed waived unless the argument identifies with 6 particularity the fact or facts that are not supported by substantial 7 evidence.
8 Rule 12-213(A)(4). Here, Defendant does not show where, in the record, he
9 specifically raised the issues in the district court. See Crutchfield v. N.M. Dep’t of
10 Taxation & Revenue., 2005-NMCA-022, ¶ 14, 137 N.M. 26, 106 P.3d 1273 (“[O]n
11 appeal, the party must specifically point out where, in the record, the party invoked
12 the court’s ruling on the issue. Absent that citation to the record or any obvious
13 preservation, we will not consider the issue.”). Defendant also does not provide
14 adequate citations to the record supporting his factual assertions for his arguments.
15 See Wachocki v. Bernalillo Cty. Sheriff’s Dep’t, 2010-NMCA-021, ¶ 15, 147 N.M.
16 720, 228 P.3d 504 (“Where a party fails to cite any portion of the record to support its
17 factual allegations, the Court need not consider its argument on appeal.”). Finally,
18 Defendant does not give any authority for certain propositions in his brief, and we
19 therefore do not consider them on appeal. See ITT Educ. Servs., Inc. v. Taxation &
20 Revenue Dep’t, 1998-NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d 969.
21 {8} In any event, we have reviewed the district court’s findings of fact and
22 conclusions of law, and in doing so, we conclude that the district court’s findings
5 1 support its conclusions on the unjust enrichment claim. See Credit Inst. v. Veterinary
2 Nutrition Corp., 2003-NMCA-010, ¶ 17, 133 N.M. 248, 62 P.3d 339 (“We review the
3 [district] court’s grant of equitable relief under an abuse of discretion standard.”).
4 Defendant has not specifically contested any of the district court’s findings of fact,
5 and they are therefore binding on appeal. See Rule 12-213(A)(4).
6 {9} The district court found that the parties had an oral contract for the transfer of
7 their respective interests in Lots 1 and 2 to the other. Whether an oral contract was
8 proven is a question of fact. See Segura v. Molycorp, Inc., 1981-NMSC-116, ¶ 26, 97
9 N.M. 13, 636 P.2d 284 (“The evidence was sufficient to establish an oral contract.
10 Therefore, the court properly submitted the issue to the jury.”). As such, we view facts
11 “in light most favorable to the prevailing party, indulge in all reasonable inferences
12 in support of the finding, and will disregard all inferences or evidence to the contrary.”
13 Pacheco v. Martinez, 1981-NMCA-116, ¶ 23, 97 N.M. 37, 636 P.2d 308. The district
14 court’s findings establish that Plaintiff paid for the construction of the house on Lot
15 1 where she received the building permit and certificate of occupancy in her name;
16 that the parties’ family members, including Defendant, referred to this house as
17 “[Plaintiff’s] house”; that Plaintiff paid for the homeowner’s insurance policy, the
18 maintenance, the repair work, and the vast majority of the taxes on the house; that
19 Defendant built and moved into his own house on Lot 2; that Defendant requested
6 1 Plaintiff to deed her interest in Lot 2; that Plaintiff transferred her interest to
2 Defendant without compensation in which she believed Defendant would transfer his
3 interest in Lot 1 to her; that when Plaintiff asked Defendant to do so, Defendant
4 demanded a survey to establish the boundary lines before he would transfer the
5 interest. These findings support the conclusion that an oral agreement existed between
6 the parties to transfer their respective interest in Lots 1 and 2 to the other. These
7 unchallenged findings also support the conclusion that Defendant would be unjustly
8 enriched if the agreement was not enforced. See Buke, LLC v. Cross Country Auto
9 Sales, LLC, 2014-NMCA-078, ¶ 45, 331 P.3d 942 (“A plaintiff claiming unjust
10 enrichment must show that (1) another has been knowingly benefitted at one’s
11 expense (2) in a manner such that allowance of the other to retain the benefit would
12 be unjust.”(internal quotation marks and citation omitted)).
13 {10} The district court also properly concluded that the statute of frauds is
14 inapplicable in this case. See Beaver v. Brumlow, 2010-NMCA-033, ¶ 13, 148 N.M.
15 172, 231 P.3d 628 (“Applicability of the statute of frauds raises a question of law,
16 which we review de novo.”). As discussed in Brumlow, New Mexico has adopted the
17 statute of frauds in common law, which states:
18 No action shall be brought upon any contract or sale of lands, tenements, 19 or hereditaments, or any interest in or concerning them unless the 20 agreement upon which such action shall be brought, or some 21 memorandum or note thereof, shall be in writing, signed by the party to
7 1 be charged therewith, or by some person thereunto by him lawfully 2 authorized.
3 Id. ¶ 16 (alteration, internal quotation marks, and citation omitted). However, we have
4 recognized in New Mexico the well-established exception of part performance. Id. ¶
5 17. “Where an oral contract not enforceable under the statute of frauds has been
6 performed to such extent as to make it inequitable to deny effect thereto, equity may
7 consider the contract as removed from operation of the statute of frauds and decree
8 specific performance.” Alvarez v. Alvarez, 1963-NMSC-124, ¶ 18, 72 N.M. 336, 383
9 P.2d 581. Here, Plaintiff transferred her interest in Lot 2 to Defendant without
10 compensation believing that Defendant would deed his interest in Lot 1, and had a
11 survey conducted on the boundary lines based on Defendant’s condition of
12 transferring interest in Lot 1. We conclude, and Defendant does not present any
13 authority to the contrary, that Plaintiff sufficiently performed the oral agreement to
14 permit the district court, as a court of equity, to order the remedy of specific
15 performance. See id. ¶ 23 (“A court of equity requires that a part performance relied
16 on to take the case out of the statute should be of a character, not only consistent with
17 the reasonable presumption that what was done was done on the faith of such a
18 contract, but also that it would be unreasonable to presume that it was done on any
19 other theory.” (alteration, internal quotation marks, and citation omitted)).
8 1 {11} Because Defendant did not comply with Rule 12-213(A)(4), and because the
2 district court’s findings support its conclusion that Defendant was unjustly enriched,
3 requiring specific performance of the oral agreement, and the statute of frauds is not
4 a bar to Plaintiff’s claims, we affirm the district court’s judgment.
5 {12} We conclude by briefly addressing Defendant’s remaining arguments.
6 Defendant argues a violation of the statute of limitation under NMSA 1978, Section
7 37-1-4 (1880); however, Defendant does not present any authority that this statute
8 applies to unjust enrichment claims. See Robertson v. Carmel Builders Real Estate,
9 2004-NMCA-056, ¶ 49, 135 N.M. 641, 92 P.3d 653 (“Absent cited authority, we will
10 not review the issue.”). In addition, Defendant complains of Plaintiff’s untimely
11 notification of witnesses two days before trial, but cites to inapplicable authority on
12 the standard of review and two-prong test for the exclusion of undisclosed witnesses
13 prior to the trial date. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15,
14 137 N.M. 339, 110 P.3d 1076 (“We will not review unclear arguments, or guess at
15 what [a party’s] arguments might be.”). Defendant also contests the district court’s
16 conclusion that a remedy is available under NMSA 1978, Section 42-4-17 (1878), but
17 this conclusion of law is irrelevant to the district court’s decision in the present case.
18 See Tartaglia v. Hodges, 2000-NMCA-080, ¶ 65, 129 N.M. 497, 10 P.3d 176 (“The
19 court’s conclusion is a rebel without a cause. Even were it erroneous, it is not
9 1 necessary to the court’s decision, and it is not a basis for reversal.”). Any other
2 arguments from Defendant do not comply with Rule 12-213(A)(4) and are either
3 unclear, underdeveloped, or both. We therefore do not consider them on appeal. See
4 id.
5 CONCLUSION
6 {13} The order of the district court is affirmed.
7 {14} IT IS SO ORDERED.
8 __________________________________ 9 MICHAEL E. VIGIL, Chief Judge
10 WE CONCUR:
11 _________________________________ 12 MICHAEL D. BUSTAMANTE, Judge
13 _________________________________ 14 LINDA M. VANZI, Judge