M-Core Construction, Inc. v. Vela

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 M-CORE CONSTRUCTION, LLC, 3 a New Mexico Limited Liability Company, 4 Plaintiff-Appellee, 5 v. No. 32,301 6 LUPE VELA, a widow, and ALL 7 UNKNOWN CLAIMANTS OF 8 INTEREST IN THE PREMISES 9 ADVERSE TO THE PLAINTIFF, 10 Defendants-Appellants. 11 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 12 Teddy L. Hartley, District Judge 13 Rowley Law Firm, L.L.C. 14 Richard F. Rowley II 15 Clovis, NM 16 for Appellee 17 Lindsey Law Firm, L.L.C. 18 Daniel R. Lindsey 19 Clovis, NM 20 for Appellants 21 MEMORANDUM OPINION 22 FRY, Judge. 1 {1} Defendant appeals from the district court’s judgment awarding damages, 2 attorney fees, enforcement of a lien, and foreclosure of Defendant’s home in favor of 3 Plaintiff. Defendant contracted with Plaintiff M-Core Construction to replace her roof 4 after it was damaged in a hailstorm. Defendant failed to pay Plaintiff the contracted 5 amount, after which Plaintiff initiated suit. We affirm. Because this is a 6 memorandum opinion and because the parties are familiar with the facts and 7 procedural history of this case, we reserve further discussion of the pertinent facts for 8 our analysis. 9 DISCUSSION 10 1. Unfair Practices Act 11 A. Door-to-Door Sales 12 {2} Defendant argues that the evidence in this case supports the conclusion that 13 Plaintiff was engaged in door-to-door sales as defined in the Unfair Practices Act, 14 NMSA 1978, §§ 57-12-21 to -26 (1987, as amended through 2007). Section 57-12- 15 21(C)(3). Defendant therefore argues that she was entitled to damages for Plaintiff’s 16 failure to comply with the requirements of that provision of the Act. For the following 17 reasons, we conclude that Defendant waived this argument, and we will not address 18 the merits of her contention. [2] 1 {3} In response to Plaintiff’s complaint, Defendant pleaded a number of 2 counterclaims, including a counterclaim that Plaintiff violated the Unfair Practices 3 Act. Defendant pleaded this claim generally by citing the entirety of the Act and did 4 not specifically reference the Act’s door-to-door sales provision. See § 57-12- 5 21(C)(3). The factual allegations supporting the claim referenced various alleged 6 misrepresentations made by Plaintiff but did not include any specific factual 7 allegations supporting a violation of Section 57-12-21. At trial, however, Defendant 8 moved for a directed verdict under Section 57-12-21 at the close of Plaintiff’s case. 9 The district court initially concluded that the provision did not apply but reserved 10 ruling on the motion until the parties had an opportunity to brief the issue. At the 11 close of the trial, the district court reiterated that Defendant was expected to file a 12 brief on the issue. Defendant acknowledged her responsibility to do so, and even 13 requested clarification as to the brief’s due date. Defendant ultimately filed no such 14 brief but included in her proposed findings of fact and conclusions of law a section on 15 the door-to-door sales provision. The district court did not enter any of Defendant’s 16 requested findings of fact or conclusions of law on this issue. 17 {4} We conclude that Defendant waived her right to appellate review of this claim. 18 Defendant did not specifically plead a claim under Section 57-12-21, and her raising 19 of the issue in the limited confines of the trial necessitated, in the district court’s view, [3] 1 briefing to determine whether the claim could be established. Defendant failed to 2 comply with the district court’s directive. Furthermore, Defendant’s inclusion of 3 argument on Section 57-12-21 in her requested findings of fact and conclusions of law 4 is not sufficient to save this claim for our review. Defendant’s proposed findings of 5 fact and conclusions of law were an inappropriate vehicle for “briefing” this issue, 6 principally because it did not give Plaintiff an opportunity to respond to Defendant’s 7 arguments. Nothing on the face of Defendant’s requested findings and conclusions 8 would alert Plaintiff—or the court for that matter—to the possibility that the pleading 9 contained argument or that a response might be appropriate. Indeed, Defendant did 10 not even file her proposed findings and conclusions until after the district court had 11 filed its own proposed findings of fact and conclusions of law. See Kilgore v. Fuji 12 Heavy Indus. Ltd., 2009-NMCA-078, ¶ 50 , 146 N.M. 698 , 213 P.3d 1127 (stating that 13 two purposes of our preservation requirements are “to allow the opposing party a fair 14 opportunity to respond to the claim of error and to show why the district court should 15 rule against that claim” and “to create a record sufficient to allow this Court to make 16 an informed decision regarding the contested issue”). Thus, Defendant functionally 17 abandoned the issue, and we accordingly decline to review the substantive arguments 18 Defendant makes regarding this claim. Woolwine v. Furr’s, Inc., 1987-NMCA-133 , 19 ¶ 20, 106 N.M. 492 , 745 P.2d 717 . [4] 1 B. Unconscionable Trade Practices 2 {5} Defendant further contends that Plaintiff engaged in unconscionable trade 3 practices: (1) by negotiating with Defendant in English even though she speaks 4 Spanish; (2) by orally promising to credit her insurance deductible and an additional 5 $7,000 but leaving these promises off the written contract; (3) by charging a non- 6 contractual sixty percent per annum interest rate on the unpaid bill; and (4) by 7 promising to use local workers instead of itinerant workers. 8 {6} Defendant’s argument is completely lacking on these points.1 Defendant first 9 correctly notes that the Act defines “unconscionable trade practices” as “an act or 10 practice in connection with the sale . . . of any . . . services . . . that to a person’s 11 detriment: (1) takes advantage of the lack of knowledge, ability, experience or 12 capacity of a person to a grossly unfair degree; or (2) results in a gross disparity 13 between the value received by a person and the price paid.” NMSA 1978, § 57-12- 14 2(E) (2009). But Defendant then lists the above alleged facts without any citation to 15 the record or additional argument or citation to authority as to why these alleged facts 16 rise to the level of a violation of the Act. This Court has no duty to review an 17 argument that is not adequately developed or to search the record or the law for 18 relevant authorities to support generalized arguments. Muse v. Muse, [1] 18 It also appears that Defendant’s briefing on this point is wholesale copied and 19 pasted from her requested findings of facts and conclusions of law. [1] 2009-NMCA-003, ¶ 72 , 145 N.M. 451 , 200 P.3d 104 (“We will not search the record 2 for facts, arguments, and rulings in order to support generalized arguments.”); 3 Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15 , 137 N.M. 339 , 110 P.3d 4 1076 (explaining that this Court “will not review unclear arguments, or guess at what 5 [a party’s] arguments might be”). We therefore decline to address these arguments. 6 2. Defendant’s Rebuttal Witness 7 {7} Defendant next purports to argue that the district court erred in refusing to allow 8 the testimony of a rebuttal witness, Wayne Petner. Despite this initial characterization 9 of her argument, Defendant largely argues that the district court erred in permitting 10 Plaintiff’s “expert”2 witness Brian Simmons to testify. In the interest of caution, we 11 will address both contentions. 12 {8} As to Simmons’s testimony, Defendant argues that Plaintiff did not disclose 13 Simmons in a witness list before the trial. While this is true, our review of the record 14 does not show that either party filed witness lists before trial. Furthermore, Plaintiff 15 clearly alerted Defendant that he was a potential witness in the case during discovery. 16 Finally, and most importantly, Defendant did not object at any time that Simmons 17 should not be permitted to testify. See Rule 12-216(A) NMRA (“To preserve a [2] 18 After reviewing the record, we do not find any instance of Simmons being 19 referred to or proffered as an expert witness. Instead, Simmons was hired by Plaintiff 20 as a consultant to aid in the installation of Defendant’s roof and therefore largely 21 testified regarding his personal knowledge and observations of the work performed. [6] 1 question for review it must appear that a ruling or decision by the district court was 2 fairly invoked[.]”). We therefore see no basis to conclude that the district court erred 3 in permitting Simmons’s testimony. 4 {9} As for Petner, the district court concluded that Petner would not be allowed to 5 testify because Defendant untimely disclosed her intention to call him. The district 6 court has broad discretion to admit or exclude the testimony of an untimely disclosed 7 witness. See Montoya v. Super Save Warehouse Foods, 1991-NMSC-003 , ¶ 16, 111 8 N.M. 212 , 804 P.2d 403 . Plaintiff objected to Petner’s testimony and argued that 9 Petner was disclosed a mere five days before trial and that it was not given any 10 supporting documents regarding Petner’s proposed testimony or an opportunity 11 depose him. On appeal, Defendant cursorily asserts that “Plaintiff did not suffer any 12 prejudice by the late identification of Defendant’s witness.” Defendant cites no 13 authority supporting this assertion and fails to elaborate on why her failure to timely 14 disclose Petner as an expert witness did not prejudice Defendant. As we stated above, 15 we will not review an argument that is not adequately developed or that is 16 unsupported by citation to authority. Headley, 2005-NMCA-045, ¶ 15 . Accordingly, 17 there is no basis to conclude that the district court abused its discretion in declining 18 to permit Petner to testify. 19 3. The District Court’s Finding Regarding Installation of the Roof [7] 1 {10} Defendant challenges the district court’s finding that “[n]o evidence of 2 inappropriate installation [or] inferior product was made.” Defendant contends that 3 the district court did not place any reliance on contrary testimony that birds built nests 4 in the end caps of the roof or that the skylight shudders in the wind and allows dust 5 to infiltrate the house. We remind counsel, however, that in a substantial evidence 6 challenge, “[t]he question is not whether substantial evidence exists to support the 7 opposite result, but rather whether such evidence supports the result reached.” Las 8 Cruces Prof’l Fire Fighters v. City of Las Cruces, 1997-NMCA-044, ¶ 12 , 123 N.M. 9 329, 940 P.2d 177 . In both her summary of proceedings and her argument on this 10 point, Defendant ignores contrary testimony that the roof was properly installed and 11 continues to re-argue her version of the facts while omitting evidence that supports the 12 district court’s finding.3 Because there is testimony that the roof was properly 13 installed and because Defendant fails to properly challenge this finding, we affirm the 14 district court on this issue. See Crutchfield v. N.M. Dep’t of Taxation & Revenue, [15] 2005-NMCA-022, ¶ 17 , 137 N.M. 26 , 106 P.3d 1273 (“Where an appellant fails to 16 include the substance of all the evidence bearing upon a proposition, this Court will [3] 16 In our notice of proposed summary disposition, we warned Defendant that the 17 failure to include all material facts to an issue, including those facts that support the 18 district court’s decision, can constitute adequate grounds for affirmance. [8] 1 not consider a sufficiency of the evidence challenge.” (internal quotation marks and 2 citation omitted)). 3 4. Plaintiff’s Exhibit 1 4 {11} Defendant challenges the district court’s admission of Plaintiff’s Exhibit 1. The 5 exhibit in question was purportedly an insurance estimate detailing the hail damage 6 to Defendant’s roof and the amount the insurance company was willing to pay in 7 satisfaction of Defendant’s claim. Plaintiff introduced the document through A.J. 8 Moreno, who testified that Defendant’s children gave him the document at their initial 9 meeting. Defendant argues that the document was admitted without a sufficient 10 foundation and that its contents were inadmissible hearsay. We address these 11 contentions in turn. 12 {12} “To satisfy the requirement of authenticating or identifying an item of evidence, 13 the proponent must produce evidence sufficient to support a finding that the item is 14 what the proponent claims it is.” Rule 11-901(A) NMRA. The sufficiency of the 15 foundation needed to authenticate evidence is within the discretion of the district 16 court. State, ex rel. Highway Dep’t v. Kistler-Collister Co., 1975-NMSC-039, ¶ 16 , [17] 88 N.M. 221 , 539 P.2d 611 . 18 {13} The sum of Defendant’s argument on this point is, “The exhibit was not self- 19 authenticating under [Rule] 11-902[(A)].” While this may be true, Defendant makes [9] 1 no further argument as to why the foundation put forth by Plaintiff was insufficient 2 to allow the district court to determine that the document was what Plaintiff claimed 3 it to be. Concluding that it was not self-authenticating under Rule 11-902(A) does not 4 automatically mean that the document was improperly admitted under Rule 11-901(A) 5 and, in the absence of further argument by Defendant, much less acknowledgment of 6 the evidence in the record underlying the district court’s decision, we will not make 7 this argument for her. Muse, 2009-NMCA-003, ¶ 72 (“We will not search the record 8 for facts, arguments, and rulings in order to support generalized arguments.”). 9 {14} As to Defendant’s argument that the document was inadmissible hearsay, 10 Defendant argues that because the custodian of the insurance company’s records did 11 not testify in court regarding the document’s contents, the document does not fall 12 under the “[r]ecords of a regularly conducted activity” exception to the hearsay rule. 13 See Rule 11-803(6) NMRA. The district court, however, did not rely on this 14 exception in admitting the document. Instead, the district court ruled that the 15 document was not being admitted for the truth of the matter asserted and that it was 16 therefore not hearsay. See Rule 11-801(C) NMRA (defining hearsay). Defendant 17 offers no argument as to why this ruling by the district court was incorrect. We 18 accordingly discern no abuse of discretion. 19 CONCLUSION [10] 1 {15} For the foregoing reasons, we affirm the district court. 2 {16} IT IS SO ORDERED. [3] 4 CYNTHIA A. FRY, Judge 5 WE CONCUR: [6] 7 LINDA M. VANZI, Judge [8] 9 M. MONICA ZAMORA, Judge