NM Bank of Trust v. Corliss

• Court: New Mexico Court of Appeals
• Decided: March 16, 2010
• Docket: 30,033
• Status: Unpublished

Opinion

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 Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 NEW MEXICO BANK OF TRUST,

8 Plaintiff-Appellee,

9 v. NO. 30,033

10 GLADYS CORLISS,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY 13 Matthew J. Sandoval, District Judge

14 Doerr & Knudson, P.A. 15 Randy J. Knudson 16 Portales, NM

17 for Appellee

18 Gladys Corliss 19 Tucumcari, NM

20 Pro Se Appellant

21 MEMORANDUM OPINION

22 FRY, Chief Judge.

23 Defendant appeals two district court orders: one finding her in contempt of

24 court and the other denying her motion to dismiss. In our notice, we proposed to 1 affirm. Defendant has timely responded to our proposal. We have considered her

2 arguments and not being persuaded, we affirm.

3 Shortly after our calendar notice was filed, Defendant filed an emergency

4 motion asking this Court to mandate that Plaintiff provide her running water. We

5 deny that motion as this Court does not have jurisdiction to issue such a mandate. See

6 NMSA 1978, § 44-2-3 (1884) (conveying upon the district court “exclusive original

7 jurisdiction in all cases of mandamus”). This Court has no original jurisdiction; we

8 are only a court of review. N.M. Const. art. VI, § 29.

9 In our notice, we proposed to conclude that Defendant could not appeal the

10 order denying her motion to dismiss, as it was not a final appealable order.

11 Defendant’s response does not address the finality of this order. Therefore, we decline

12 to address the merits of the appeal of the order denying the motion to dismiss.

13 We proposed to affirm the order holding Defendant in contempt of court for

14 failing to comply with a previous court order. Defendant continues to argue that the

15 order she was found to have disobeyed was not a valid order. She does not make any

16 new arguments, but simply reiterates that Judge Sandoval had no authority to issue

17 orders. She argues that she cannot be held in contempt of an order that she has been

18 unable to appeal. We disagree. The propriety of the order that she refuses to obey is

19 not relevant to a finding of contempt. See State v. Cherryhomes, 114 N.M. 495, 498,

2 1 840 P.2d 1261, 1264 (Ct. App. 1992) (stating that a party who disobeys an order may

2 not collaterally attack the validity of the underlying order in the course of an appeal

3 from a judgment holding the party in criminal contempt of court for violating the

4 order). Much of Defendant’s memorandum in opposition to our calendar notice is an

5 attack on the underlying order. We do not consider those arguments in this case.

6 As we pointed out in our notice, there are three elements to a finding of

7 contempt: (1) knowledge of the court’s order, (2) ability to comply, and (3) willful

8 noncompliance with the order. Dial v. Dial, 103 N.M. 133, 136, 703 P.2d 910, 913

9 (Ct. App. 1985). Evidence of each of those elements was established here.

10 In our notice, we addressed Defendant’s claim of a due process violation during

11 the contempt proceedings. Defendant’s memorandum does not provide us with any

12 further argument on that issue.

13 Therefore, for the reasons stated herein and in the notice of proposed

14 disposition, we affirm the order holding Defendant in contempt of court.

15 IT IS SO ORDERED.

16 17 CYNTHIA A. FRY, Chief Judge

3 1 WE CONCUR:

2 3 JONATHAN B. SUTIN, Judge

4 5 ROBERT E. ROBLES, Judge