Bernstein v. Gaffney

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 ROBERT BERNSTEIN, 3 Plaintiff-Appellee, 4 v. No. 33,759 5 GARY GAFFNEY and 6 BECKY GAFFNEY, 7 Defendants-Appellants. 8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 9 Clay Campbell, District Judge 10 Robert Bernstein 11 Albuquerque, NM 12 Pro Se Appellee 13 Gary Gaffney 14 Becky Gaffney 15 Albuquerque, NM 16 Pro Se Appellants 17 MEMORANDUM OPINION 18 FRY, Judge. 19 {1} Gary Gaffney and Becky Gaffney (Defendants) appeal from the district court’s 20 order dismissing their appeal from an on-record metropolitan court judgment of 1 restitution under the Owner-Residents Relations Act. [RP 24] This Court’s calendar 2 notice proposed summary affirmance. [CN1] Defendant has filed a memorandum in 3 opposition to the calendar notice. [MIO, top document] After due consideration, 4 however, we affirm. 5 DISCUSSION 6 {2} In the memorandum, Defendants argue that they were denied due process in the 7 metropolitan court on the merits, in the district court when it dismissed their appeal, 8 and now in this Court because we propose to affirm the district court’s dismissal. 9 [MIO, top document] We remain unpersuaded. 10 {3} Initially, we note that Defendant’s memorandum does not address the analysis 11 or any of the authorities set forth in the calendar notice. See State v. Sisneros, [12] 1982-NMSC-068 , ¶ 7, 98 N.M. 201 , 647 P.2d 403 (holding that the opposing party 13 must come forward and specifically point to error in fact or in law in the proposed 14 disposition). Second, we remain persuaded that the calendar notice analysis, and the 15 authorities cited therein, including the rules promulgated by the Supreme Court, 16 support affirmance of the district court’s decision to dismiss Defendants appeal in 17 accordance with applicable law. See, e.g., Pierce v. State, 1996-NMSC-001 , ¶¶ 17, 18 52, 55, 121 N.M. 212 , 910 P.2d 288 (courts look to statutes as the state law that 19 determines the vested rights created and defined by the legislative intent, rights which [2] 1 are then protected by the Constitution and due process). Third, to the extent that 2 Defendant may be arguing that he was denied due process because the district court 3 interfered with his right to an appeal by dismissing it (see N.M. Const. art. VI, § 2), 4 we note that this Court is bound by Supreme Court Rules, which, as discussed in the 5 calendar notice, support the district court’s decision in this case. See Alexander v. 6 Delgado, 1973-NMSC-030 , 84 N.M. 717 , 507 P.2d 778 , modified by State v. Wilson, [7] 1994-NMSC-009 , ¶¶ 5-7, 116 N.M. 793 , 867 P.2d 1175 (altering the Alexander 8 doctrine by freeing the Court of Appeals to amend, modify, or abolish Uniform Jury 9 Instructions that have not been specifically addressed by the Supreme Court on 10 appeal). We decline to hold that the Supreme Court Rules discussed in the calendar 11 notice and below are unconstitutional, however, because Defendant failed to 12 specifically argue any basis for doing so under circumstances where Defendant was 13 only “deprived of an appeal” by his own failure to comply with the Supreme Court 14 Rules requiring him to request a transcript of the metropolitan court proceedings be 15 made so that the district court and this Court could review those very proceedings on 16 appeal. See, e.g., State v. Handa, 1995-NMCA-042 , ¶ 35, 120 N.M. 38 , 897 P.2d 225 17 (stating that a defendant may not invite error and later complain about it and that the 18 doctrine of fundamental error has no application when the defendant has invited the 19 error). [3] 1 {4} As we discussed in the calendar notice, the district court dismissed Defendants’ 2 appeal of the metropolitan court judgment on the basis that Defendants had failed to 3 record the bench trial in metropolitan court, and therefore the district court had no 4 record to review on appeal in accordance with its role as an appellate court from an 5 on-record metropolitan court trial. [RP 24] Because Defendants contest the district 6 court’s dismissal and reassert the merits of their case in their docketing statement filed 7 in this Court [DS 25-26], Defendants are esssentially contending that the district court 8 and this Court can and should conduct a new trial, i.e., that Defendants are entitled to 9 de novo appeals. 10 {5} The question whether a party is entitled to a de novo appeal, or new trial, in 11 district court is a question of law that we review de novo. See State v. Krause, [12] 1998-NMCA-013, ¶ 3 , 124 N.M. 415 , 951 P.2d 1076 . The New Mexico Constitution 13 grants district courts appellate jurisdiction over all inferior courts, and trials in district 14 court are de novo unless otherwise provided by law. See N.M. Const. art. VI, § 13; 15 N.M. Const. art. VI, § 27. In the case of civil appeals from metropolitan court, the 16 legislature has “otherwise provided by law” because, pursuant to NMSA 1978, 17 Section 34-8A-6(B) (1993), the metropolitan court is a “court of record” for civil 18 appeals. [4] 1 {6} In an on-record appeal from metropolitan court, neither the district court nor 2 this Court conduct a new trial. See Serna v. Gutierrez, 2013-NMCA-026, ¶ 13 , 297 3 P.3d 1238 . Moreover, notice to Defendants that they have the right and the obligation 4 to record the proceedings is readily available to Defendants in the metropolitan court 5 rules. [RP 14] Rule 3-708(A) NMRA states that: “Every civil proceeding in the 6 metropolitan court shall be tape recorded if requested by a party.” Rule 3-706(E)(5) 7 NMRA states that the appellant shall file a copy of the record on appeal from 8 metropolitan court to district court, which shall consist of any transcripts of the 9 proceedings, either stenographically made or tape recorded. Rule 3-202(B)(4) NMRA 10 states that the summons shall include 11 a notice that the defendant may request prior to any proceeding that the 12 proceeding may be recorded. The notice shall advise the defendant if a 13 tape recording is not made of the proceedings it may effectively preclude 14 the defendant from appealing to the district court. 15 In this case, the record proper indicates that, in accordance with Rule 3-202(B)(4), 16 Plaintiff properly notified Defendants in their metropolitan court summons that 17 Defendants may request a recording of the proceedings and the consequences of not 18 doing so. [RP 14, final paragraph in bold capital letters] 19 {7} Accordingly, we hold that Appellant’s failure to make a record of the 20 metropolitan court trial precludes appeal to district court. See generallyMichaluk v. 21 Burke, 1987-NMCA-044 , ¶ 25, 105 N.M. 670 , 735 P.2d 1176 (“Where the record on [5] 1 appeal is incomplete, the ruling of the trial court is presumed to be supported by the 2 evidence.”); see also Sandoval v. Baker Hughes Oilfield Operations, Inc., [3] 2009-NMCA-095, ¶ 65 , 146 N.M. 853 , 215 P.3d 791 (observing that “[i]t is the duty 4 of the appellant to provide a record adequate to review the issues on appeal”). 5 CONCLUSION 6 {8} We affirm the district court’s dismissal of Defendants’ appeal from the 7 metropolitan court on-record judgment of restitution. 8 {9} IT IS SO ORDERED. [9] 10 CYNTHIA A. FRY, Judge 11 WE CONCUR: [12] 13 MICHAEL E. VIGIL, Judge [14] 15 TIMOTHY L. GARCIA, Judge