Rabo Agrifinance, Inc. v. Terra XXI, Ltd.

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 RABO AGRIFINANCE, INC., 3 Successor in Interest to Farm 4 Credit Bank of Texas,

5 Plaintiff-Appellee,

6 v. NO. 34,757

7 TERRA XXI, LTD., a Texas Limited 8 Partnership, Composed of VEIGEL CATTLE 9 COMPANY, as General Partner; 10 ROBERT WAYNE VEIGEL a/k/a BOB W. VEIGEL; 11 ELLA MARIE WILLIAMS VOGEL, a/k/a 12 ELLA MARIE VEIGEL; 13 VEIGEL CATTLE COMPANY, a Texas corporation; 14 VEIGEL FARM PARTNERS, a Texas general partnership 15 d/b/a Veigel Partners; 16 BOB VEIGEL, INC., a Texas corporation; 17 STEVE VEIGEL, INC., a Texas corporation; 18 VEIGEL-KIRK, INC., a Texas corporation; 19 VICKI VEIGEL, INC., a Texas corporation; 20 VEIGEL FARMS, INC., a Texas corporation; 21 TERRA PARTNERS, a Texas general partnership; 22 BURNETT & VEIGEL, INC., a Texas corporation, 23 as general partner of Terra Partnership, a Texas 24 general partnership; and ALL UNKNOWN 25 CLAIMANTS OF INTEREST IN THE PREMISES 26 ADVERSE TO THE PLAINTIFF,

27 Defendants-Appellants,

28 APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY 29 Drew D. Tatum, District Judge 1 Rowley Law Firm, P.C. 2 Richard F. Rowley II 3 Clovis, NM

4 for Appellant

5 Keleher & McLeod, P.A. 6 Jeffrey A. Dahl 7 Julia L. Maccini 8 Albuquerque, NM

9 for Appellants

10 MEMORANDUM OPINION

11 ZAMORA, Judge.

12 {1} Appellants Terra XXI, Ltd., et al. (Defendants) appeal from the district court’s

13 ruling that denies Defendants relief based on their Rule 1-060(B) NMRA argument

14 for application of the primary fund doctrine. [RP Vol.14/3328, 3347] Our notice

15 proposed to affirm, and Defendants filed a memorandum in opposition, as well as a

16 motion to stay the proceedings in this Court. Defendants’ motion to stay is denied. We

17 further remain unpersuaded by Defendants’ arguments, and thus affirm.

18 {2} As set forth in our notice, in a previous appeal in this Court, Defendants also

19 raised a primary fund doctrine argument, but in that appeal this Court declined to

20 review the primary fund argument on the basis that Defendants had not preserved such

21 argument in their underlying Rule 1-060(B) motion filed in district court. See Rabo

22 Agrifinance, Inc. v. Terra XXI, Ltd., 2014-NMCA-106, ¶¶ 5, 13, 15, 17, 336 P.3d 972

2 1 (declining to review the primary fund doctrine argument for lack of preservation in

2 the underlying Rule 1-060(B) motion). [RP Vol.14/3198, 3199] Subsequent to that

3 appeal and now the subject of the present appeal, Defendants filed a second Rule 1-

4 060(B) motion in the district court, this time raising an argument pursuant to the

5 primary fund doctrine, which the district court again denied. [RP Vol.14/3201, 3235,

6 3305, 3328, 3347]

7 {3} In our notice, we did not address the merits of Defendants’ primary fund

8 argument. Instead, we considered that Defendants did not raise a primary fund

9 doctrine argument in their first Rule 1-060(B) motion, as addressed in the previous

10 appeal, and declined to review the merits on the basis that we could perceive no

11 justifiable reason for Defendants’ failure to do so. See Rios v. Danuser Mach. Co.,

12 1990-NMCA-031, ¶ 25, 110 N.M. 87, 792 P.2d 419 (recognizing our disfavor of

13 multiple Rule 1-060(B) motions, and providing that a subsequent Rule 1-060(B)

14 motion for relief based on different grounds than the first motion may be considered

15 “if there was a justifiable reason for not raising those grounds in the first motion”); see

16 also Gedeon v. Gedeon, 1981-NMSC-065, ¶ 17, 96 N.M. 315, 630 P.2d 267 (stating

17 “[i]t is well established that a motion for relief from a judgment or order under Rule

18 [1-60(B)] is not intended to extend the time for taking an appeal and cannot be used

19 as a substitute for appeal”).

3 1 {4} In response to our notice, Defendants point out that unlike in the previous

2 appeal, this time they raised their primary fund argument in their second Rule 1-

3 060(B) motion filed in district court. [MIO 3] We acknowledge this, but again

4 emphasize that Defendants have nonetheless not provided a justifiable reason for not

5 raising the primary fund argument in their first Rule 1-060(B) motion. While

6 Defendants advocate that “application of the primary fund doctrine is necessary and

7 appropriate” [MIO 3] and required by equity on the asserted basis that the proceeds

8 from the sale of the Texas property satisfied the judgment against them, this argument

9 relates to the merits of application of the primary fund doctrine [MIO 4], but does not

10 provide a justifiable reason for failing to raise the argument in their first Rule 1-

11 060(B) motion.

12 {5} For the reasons set forth herein and in our notice, we affirm the district court’s

13 order denying Defendants’ motion for relief.

14 {6} IT IS SO ORDERED.

15 16 M. MONICA ZAMORA, Judge

4 1 WE CONCUR:

2 3 MICHAEL D. BUSTAMANTE, Judge

4 5 J. MILES HANISEE, Judge